Passive or active, to 'distribute' kid porn is still illegal (Walt Nett's blog)

Take the verb "to distribute." We've all grown up with the concept of "distributing" means handing something out to others. Sportscasters like to say "he distributes the ball well" of a point guard who makes smart, snappy passes. Teachers will hand a stack of papers to a kid in the front row with the instruction "distribute these." And the papers are passed out in some way, shape or form.

Dictionaries pretty much reinforce the definition, tracing the history to the Latin "distributare" -- "dis" meaning "apart" and "tributare" meaning to "give", as in "giving tribute."

Bennie Richardson IV's lawyers tried to sell that argument -- that distributing is an active effort -- to a three-judge panel of the Fifth Circuit Court of Appeals in trying to have his conviction on federal child pornography distribution charges overturned.

The judges didn't buy it.

In 2011, a federal judge in Houston sentenced Richardson, of Pasadena, to 151 months in prison and 25 years' supervised release for distribution after he was convicted in a bench trial.

Richardson was collecting pornographic images through a peer-to-peer file-shareing system. The process allowed him to leave images in a folder on his computer visible -- and available for downloading -- to others using similar software.

And the system rewards users for the number of files they make available for sharing. The more files people can download from you, the more files you can download from others on the network.

Richardson had 144 files available through his computer's peer-to-peer connection.

On appeal, his attorneys contended there was no evidence that he actually and actively "delivered or transferred" possession of his child pornography to another person.

Instead, he "merely kept files in a 'shared folder,' such that others could gain access to the files on the computer only if they affirmatively initiated a download."

The appellate judges drew on language from the neighboring (Colorado-New Mexico) Tenth Circuit that compared the situation to ownership of a self-service gas station. The owner need not be involved in pumping the gas, nor even be present when the motorist puts fuel in the tank. The existence of the station makes the gas available -- distributes it -- to any passing motorist.